DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
HD:hd
Docket No. 02822-09
5 June 2009
From: . Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj:
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 28 Feb 09 w/attachments
(2) Subject's e-mail dtd 1 Jun 69
(3) PERS-32 memo dtd 20 Apr 09
(4) Subject's itr dtd 23 May 09
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure (1) with
this Board requesting, in effect, that the applicable naval
record be corrected by modifying the fitness report for
18 December 2007 to 31 October 2008 (copy at Tab A) by deleting
all marks, averages, recommendations and comments from blocks
33-43 and 45 and all statements and attachments. In enclosure
(2), he indicated completely removing the report would be
acceptable.
4
2. The Board, consisting of Ms. Willis and Messrs. Bowen and
Ivins, reviewed Petitioner's allegations of error and injustice
on 29 May 2009, and pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record. Documentary material considered
by the Board consisted of the enclosures, applicable statutes,
regulations and policies.
3. The Board, having reviewed all the facts of record
pertaining to Petitioner's allegations of error and injustice,
Finds as follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Enclosure (1) was filed in a timely manner.
¢. Petitioner was recommended for detachment for cause
(DFC) on the basis of a command investigation dated 1 May 2008
into the circumstances surrounding the over-obligation of TADTAR
funds during Fiscal Year 2008. In his third endorsement of
23 September 2008 on Petitioner's statement regarding the DFC,
the Commander, Carrier Strike Group EIGHT stated this
investigation "was plagued by violations of law and regulation
which substantially and materially prejudiced the rights of
[Petitioner] and others." On 30 December 2008, the DFC was
disapproved, and Petitioner was detached from his parent
command, USS LABOON (DDG-58), but not for cause.
d. The contested fitness report shows Petitioner was the
executive officer (XO) aboard LABOON from the beginning of the
reporting period to 29 May 2008, when he began temporary
additional duty (TAD) with the Commander, Destroyer Squadron TWO
EIGHT. It is not adverse, making no reference to the
investigation or request for DFC, but marks Petitioner
"promotable" (third best of five possible marks) in block 42
("Promotion Recommendation - Individual"), with no peer
comparison, and assigns him marks of "3.0" (third best of five
possible marks) in six of seven areas (“4.0" (second best) in
the other). Block 41 ("Comments on Performance") says he is a
“good officer” whose performance as XO was "Solid." Petitioner
submitted a statement to the report, indicating he felt his
performance as XO rated a better appraisal. The reporting
senior's endorsement on Petitioner's statement merely said
"Forwarded."
e. In enclosure (3), PERS-32, the Navy Personnel Command
(NPC) office with cognizance over the subject matter of the
case, commented to the effect Petitioner's request should be
denied. PERS-32 noted that Petitioner's TAD unit was not
authorized to submit a concurrent fitness report, but was
permitted to provide input for his regular report.
f. Enclosure (4) is Petitioner's reply to the NPC advisory
opinion. He contended that his having received no fitness
report from the command to which he was assigned TAD for eight
of the 13 months covered by the contested fitness report (as
extended to his detachment on 24 January 2009) unfairly
disadvantaged him. He argues that had he been properly advised
of the regulations and implications of remaining attached to
Commander, Destroyer Squadron TWO EIGHT, he could have sought
transfer.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
notwithstanding enclosure (3), the Board finds an injustice
warranting complete removal of the fitness report in question.
Particularly noting that the report, while not adverse, reflects
a far less than enthusiastic endorsement, the Board believes it
was tainted by the unsuccessful effort to detach Petitioner for
cause, which had been based on a command investigation found to
be seriously flawed. Accordingly, the Board recommends the
following corrective action:
RECOMMENDATION :
a. That Petitioner's naval record be corrected by removing
therefrom the following fitness report and related material:
Period of Report
Date of Report Reporting Senior From To
21Novo8 USN 18DecO7 = =310ct08
b. That there be inserted in Petitioner's naval record a
memorandum in place of the removed report containing appropriate
identifying data concerning the report; that the memorandum
state that the report has been removed by order of the Secretary
of the Navy in accordance with the provisions of federal law and
may not be made available to selection boards and other
reviewing authorities; and that such boards may not conjecture
or draw any inference as to the nature of the report.
c. That any material or entries inconsistent with or
relating to the Board's recommendation be corrected, removed or
completely expunged from Petitioner's record and that no such
entries or material be added to the record in the future.
d. That any material directed to be removed from
Petitioner's naval record be returned to the Board, together
with a copy of this Report of Proceedings, for retention in a
confidential file maintained for such purpose, with no cross
reference being made a part of Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.
BDOVATA cts dh. faz
ROBERT D. ASALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action. \
W. DEAN
Reviewed and approved:
Qaxt Ca
U-\a-69q
NAVY | BCNR | CY2008 | 08771-08
Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected by removing the fitness report for 1 November 2007 to 16 May 2008 and all related material, a copy of which is at Tab A. d. In enclosure (3), the NPC office with cognizance over performance evaluations also recommended removing the reference to a pending DFC, but added a recommendation to remove...
NAVY | BCNR | CY2013 | NR4797 13
Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected by removing the fitness report for 1 May 2011 to 30 April 2012 and the extension letter dated 28 June 2012, extending the period of this report to 28 June 2012 (copies at Tab A). Petitioner requests that the contested fitness report and extension letter be removed to comply with the Commander,...
NAVY | BCNR | CY2010 | 12173-10
Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected by removing the detachment for cause (DFC) from duty as Commanding Officer, Mine Countermeasures Crew PERSISTENT, requested by the Commander, Mine Countermeasures Squadron TWO letter of 3 March 2009 and approved by the Commander, Navy Personnel Command (NPC) letter of 9 September 2009. In...
NAVY | BCNR | CY2003 | 01562-03
Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In this connection, the Board substantially concurred with the comments contained in the 2.c, that the applicant “has to show that advisory opinion, except the statement, in paragraph either there is no rational support for the reporting senior’s action or that the reporting senior acted for...
NAVY | BCNR | CY2011 | 05164-11
c. While Petitioner was assigned to the U. S. Defense Attaché Office, Lisbon, Portugal, the same Air Force reporting senior, a colonel, gave him two fitness reports, the uncontested commendatory report for 8 April 2006 to 31 July 2007 (copy at Tab B) and the contested adverse report, submitted on the occasion of Petitioner’s detachment. The fifth endorsement, from the Commandant, Naval District Washington (exhibit 10 to Petitioner's application at enclosure (1)), recommended approving...
NAVY | BCNR | CY2009 | 12759-09
Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed written application, enclosure (1), with this Board requesting, in effect, that the applicable naval record be corrected by . d. Petitioner contends that the contested fitness report violates the applicable fitness report order, Marine Corps Order P1610.7F, in that it reflects “faint praise”; the marks reflect marginal performance without any corroboration in the narrative; the last two...
NAVY | BCNR | CY2014 | NR2458 14
Pursuant to the provisions of reference (a), Subject, hereinafter referred to as petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected by removing the original enlisted performance evaluation report for 16 November 2011 to 15 August 2012, signed by Lieutenant Commander H. R. F---, Supply Corps, U. S. Navy Reserve, and the evaluation report letter-supplement Gated 25 Ahugust 2013 (copies at Tab B), and replacing them with the...
NAVY | BCNR | CY2002 | 07954-99
A fitness report is an opinion document that reflects the reporting senior’s evaluation of the officer’s performance. The member requests the removal of his fitness report for the 2. Block 41 of the subject fitness FITREP is being submitted due to a A commanding officer has significant In accordance a commanding officer may submit a The member's argument that the special report is unjust seems 4. to be based on his allegation that the commanding officer used the special report as punishment.
NAVY | BCNR | CY2007 | 09316-07
The first of the three contested endorsements on the FNAEB report, from Commander (CDR) C---, the Commanding Officer (CO) of Petitioner’s squadron, HC-4, disagreed with the FNAEB and recommended B(l) status. Regarding the assertion that CAPT B--- had prepared his recommendation before interviewing Petitioner, the Board notes Petitioner had provided the statement at enclosure (26) of the FNAEB report. The Board is unable to find CAPT B--- did not review the FNAEB report in preparing his...
NAVY | BCNR | CY2008 | 02276-08
Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected by removing the fitness report for 1 November 2004 to 1 April 2005, a copy of which is at Tab A. d. Petitioner alleges that on 10 December 2004, the reporting senior assaulted his wife, and that the reporting senior then told Petitioner that if Petitioner reported the incident, he would ruin...